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I agree with Hooded Utilitarian blogger Robert Stanley Martin that Siegel and Shuster were better-treated by DC than the histrionic mythology perpetuated by the comics press would lead you to believe.

Where Martin’s “The Superman Case, and Best Outcomes for Writers in Comics” falls apart is where he calls reversion rights — the legal mumbo jumbo that Superman’s heirs have used to regain some control over the Superman franchise — “idiotic.”

“Apart from public-domain laws, I personally see little difference between a copyright and a piece of tangible property such as a car or a house,” says Martin. He goes on to compare the situation to buying a Camaro and having General Motors want it back after a few years.

Note: “Apart from public-domain laws,” says Martin.

That’s like saying, “Apart from the blueness of the sky, I see no reason not to say that the sky is orange.” You can’t argue with that, but you also can’t let somebody get away with saying it, either. (Well, actually, I can argue a little bit: there are no public domain laws. There is only the public domain, and there are copyright laws.)

To have a conversation about copyright — and copyright reversion — and leave the public domain out of it is not playing fair ball. The public domain can’t be brushed aside. Copyright, like patent law, was intended originally to give creators a limited-time monopoly on the use of their creations, but not, at all, eternal ownership of those creations. Here’s what the Constitution says (emphasis added by me): “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In other words: the public domain is the natural state for all ideas and their expression. Copyright is a temporary reward for the people who created those ideas and expressions, instituted by Constitutional fiat, and changeable at will by Congress, but always — by design and conception — temporary. Once the creators (or the people the creators assigned their rights to, like DC Comics) have had a chance to exploit a property as long as legally permissible thanks to this convenient and useful legal construct, the material goes back to the culture itself, where it would have been all along except for this legal construct, owned by everybody, along with the works of Shakespeare, Homer, and Da Vinci.

The fact that items of intellectual property like Superman (or, more specifically, the stories Siegel and Shuster created featuring him — you can’t copyright ideas, only expressions of ideas) are supposed fall into the public domain after a certain period of time is the crux of the matter, the dog that wags the tail, not the other way around.

When Congress, at the request of Disney and other megacorporations, extended the period of time that it would take for an item to fall into public domain — not once but several times, and not in small increments but by decades — it was very aware of the fact that it was retroactively changing the value propositions of the past deals that creators like Siegel and Shuster had made, too. If I think I’m selling you something that is going to last you 25 years (or whatever the term was), and can’t possibly do you any good after that 25 years is up, I might sell it to you for a fairly low price. If I had known you were going to be able to legally exploit it for an extra 50 or 75 years, or even 100 (Superman will be 100 before most of us reach retirement age) I would probably have asked for more money, because something that lasts 25 years is fundamentally less valuable than something that lasts 100.

While it’s true that a Camaro has an expected lifespan, which its owner can expand or shrink based on how he treats the car, the term of copyright is a legal construct and will be precisely what the law says it is, no matter what. If copyright law had stayed the same, no amount of spit and polish and oil changes would have kept the copyright to Action Comics # 1 in DC’s exclusive hands for as long as it stayed there. It’s not a car. It’s just not. It was, literally, an Act of Congress that extended the lifespan of this property, not anything DC had done.

By changing the term of copyright retroactively — not just for future works but for things created in the past, likeĀ Superman — Congress caused every copyright sale prior to the change to be weighted far more heavily in the buyer’s favor than either buyer or seller had originally intended. Rights reversion opportunities were meant to remedy this situation, by allowing creators, presumably, to negotiate for more money to reflect the new reality.

Which the Superman heirs did do, and did receive. But that’s another story for another day.

Edited to add: I hadn’t read the comments thread below Martin’s post when I wrote this. Many of the points I make here were made better by Kurt Busiek and Noah Berlatsky over there. One final bone of contention, though: in the course of arguing with Busiek, Berlatsky and others, Martin argues that Congress clearly intends, with its recent changes in copyright law, to make intellectual property permanent, like “real” property. But it doesn’t matter what Congress (or Sonny Bono, whom Martin seems especially fixated upon) intends, because Congress can’t exceed its Constitutional mandate here. The Constitution doesn’t give Congress the power to do anything except to secure copyright “for limited Times.” To make “intellectual property” a real thing, as permanent and enforceable and solid as “real” property, you’d have to amend that document. I don’t think it’s going to happen.

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